The Prestige of Judicial Office and Other Fables

“Judge: a law student who marks his own examination papers.” H.L. Mencken
“It is not a justice system. It is just a system.” Bob Enyart
“The United States is a nation of laws: badly written and randomly enforced.” Frank Zappa
In 2008, a Surrogate Judge named Dennis LaBombard was removed from office by the Court of Appeals for, among other things, telling someone that he was a judge after he was involved in a minor car accident. You see, Rule 100.3(C) of the Code of Judicial Conduct provides that “a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.” In 1999, the Court of Appeals removed the East Greenbush Town Justice for handing out pamphlets in his courtroom for a private defensive driver course. More recently, the Commission on Judicial Conduct admonished Appellate Division, Fourth Department Justice Nancy Smith for violating Rule 100.3(C) for writing to the Division of Parole Board on behalf of a young man. She used her judicial stationary. As we know, the Commission on Judicial Conduct has a very low tolerance for any use of the prestige of office to advance the simplest opinion. They have used Rule 100.3(C) 94 times dating back to 1991 to discipline judges. Heck, they went so far as to publish a nifty 65 page report in May to answer the burning question of whether the use of judicial license plates violates this Rule. The answer: No, they don’t, but they could, so let your spouse and kiddies know if they use your car.
So, it came as somewhat of a surprise that the “Powers That Be” at the Unified Court System asked that the Administrative Judges send out a Memorandum on official Unified Court System letterhead with a “synopsis” of the Ballot Referendum increasing the age limits for Court of Appeals judges. Of course, this affects the impending mandatory retirements of two Court of Appeals Judges including the Chief Judge. The “synopsis” was prepared by the Counsel’s Office of the Unified Court System for circulation to all Supreme, County, Family, Surrogate and City Court Judges. It contains seven bullet points of “Arguments in Favor of Vote for Constitutional Age Reform”. My favorite is that “Judging is a ‘Late Peak’ Occupation.” Who would have guessed that? I wonder which of Unified Court System counsel thought that one up. From my personal experience, I can assure you that matrimonial law and lifeguarding are NOT Late Peak occupations. In any event, the OCA counsel’s synopsis contains no arguments against the Vote for Constitutional Age Reform, a clever term of art in and of itself. In other words, this is a flyer to publicly lend the prestige of the whole darn New York Court System to an amendment to the constitution that will be voted on by the hoi polloi of New York State in November.
Now, just to allay the fears of the judiciary about the propriety of this Memorandum, it refers judges to the Chairman and Chief Counsel of the Advisory Committee on Judicial Ethics “to provide ethical guidance.” Amen to that brother. Did you know there is a toll free Judicial Ethics Helpline for this stuff, just in case there is a judge’s question that needs an answer in the middle of the night, like can I tell an off color joke at a Policeman’s Benevolent Association function? Answer: Apparently not. It is kind of like Siri for Judges, just in case you need to know. The rest of us just rely on our local bartenders.
And just what is the Advisory Committee on Judicial Ethics? It is a 26 member Committee to “interpret the Rules governing Judicial Conduct.” Their website has a “Judicial Quiz” to sharpen the skills of the judiciary and avoid the pitfalls of ethical challenges. They also have a list of all opinions, but of course the one relating to the November vote is not available. Here is my personal favorite. In March of 2013 they opined that a judge as a private citizen could NOT sign a petition sponsored by a legislator, even without divulging the judge’s status as a judge. That of course would lend the prestige of judicial office to advance the private interests of others. Heavens no, that would be improper. And just what is so improper about signing this petition? It “advocates that certain laws be amended to be more consistent with the United States Constitution.” Now, just how the Commission’s counsel and Chairman distinguish the Unified Court System’s efforts here with that opinion is beyond me, and the use of Office of Court Administration letterhead for just such a purpose does make one wonder if there are two different ethical standards for the judiciary and the Office of Court Administration. No, that couldn’t be. Just because the Chief Administrative Judge is on the memo’s letterhead doesn’t mean that the prestige of that office is being lent to anything, does it?
And by the way, is it true that the local Supreme Court and Appellate Judges were “asked” by the Office of Court Administration if they would speak to adult home and nursing home residents about the proposed Constitutional Amendment? That couldn’t happen could it? I wonder what would happen to me if I asked my employees to speak to people about some constitutional amendment I liked.
Need more evidence? Ever hear of David Bookstaver? He is a “spokesman” for the Unified Court System, and boy do they need a spokesman. He recently told the New York Law Journal, “This is an amendment that will be good for New Yorkers, good for the judiciary, and good for the entire State. We appreciate any effort to raise awareness and support of this crucial amendment.” I am presuming he was using the royal “we” in that sentence. In any event, he recently told Capital New York, “On any piece of legislation or any referendum, we look carefully at what we can do. We can't raise money, we can't do campaigning, but we can certainly tell the public why this is good for the court system. The judges should know why and be able to tell the public why.” Sure, unless you want to sign a petition without even saying he is a judge if that advocates a legislative change. And by the way, want to know what a Unified Court System spokesman earns? Just shy of $135,000 per year. Where do I sign up?
Oh well, let’s see what else is new with our court system. Did you know we now have a Human Trafficking Court? It is for people accused of prostitution. As OCA puts it, “All cases charging prostitution or related offenses that continue past arraignment will be transferred to the Human Trafficking Court, where they will be evaluated by the judge, defense attorney and prosecutor.” I can’t imagine what prompted all this, or what it will cost, but being all things to all people, the new system will “link participants to education and job training programs to help prevent their return to the commercial sex industry.” Sure, why not? I suggest merging the Human Trafficking Court in Albany with the city’s Traffic Court. Maybe we’ll save a buck or two.

Matter of LaBombard, 11 N.Y.3rd 294 (2008)
Matter of Assini,, 94 N.Y.2d 26 (1999)
Matter of Smith, Commission on Judicial Conduct Opinions, June 1, 2013.
You can read the whole tome here:
http://www.cjc.ny.gov/Publications/nyscjc.JudLicPlateRep.2013-05-07.pdf

Matter of Ramich, March 12, 2012.
Opinion 13-17, March 14, 2013.
New York Law Journal, “Group Will promote Amendment to Raise Judge’s Retirement Pay” by Joel Stashenko, September 9, 2013
“In a Memo Judges Share Retirement age Talking Points” by Jimmy Vielkind, Capital New York, October 21, 2013.